Employment Bulletin – April 2019

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Government commits to protecting worker rights after Brexit

The government says it’s committed to maintaining workers’ rights after the UK leaves the European Union.

It says it will not reduce the standards of protection in EU laws retained in UK law and will ensure that new legislation changing those laws will be assessed as to whether they uphold this commitment.

It says parliament, trade unions and businesses will all be given an enhanced role in shaping employment law. This will be achieved in various ways:

  • parliament to be given a vote on adopting future EU rules on workers’ rights
  • government will consult with trade unions and businesses on future workers’ rights proposals
  • new proposals including a single enforcement body to protect vulnerable and agency workers
  • new parliamentary power to build on the Good Work Plan, announced last year.

Parliament will be given the right through the Withdrawal Agreement Bill to consider any future changes in EU law that strengthen workers’ rights or workplace health and safety standards, and vote on whether they too should be adopted into UK law.

The measures will require Parliament to be given regular updates on changes to EU legislation in this area and give MPs a say on the action government should take in response, including whether the UK should remain aligned with the EU. In preparing those updates, it will consult with trade unions, businesses and the relevant select committees of Parliament.

This new process will start with two EU Directives that come into force after we have left and following the Implementation Period – the Work Life Balance Directive and the Transparent and Predictable Working Conditions Directive.

The government has voted in favour of both directives in the European Council and intends to ask Parliament if it wants to adopt them into UK law.

The Work Life Balance Directive introduces new rights for parents and carers, such as 2 months’ paid leave for each parent up until the child is 8, and 5 days of leave for those caring for sick relatives.

The Transparent and Predictable Working Conditions Directive will set the terms of employment for workers by their first working day. The government is already committed to many of these measures.

A government spokesman said: “After Brexit it should be for Parliament to decide what rules are most appropriate, rather than automatically accepting EU changes. When it comes to workers’ rights this Parliament has set world-leading standards and will continue to do so in the future, taking its own decisions working closely with trade unions and businesses.”

 

Female economist denied promotion wins sex discrimination case

A female economist has been awarded £19,000 after she was overlooked for promotion by her employer who instead gave the job to a less qualified male colleague.

The employee joined her employer in August 2016 as a grade 7 economist.

In February 2017, she applied for an advertised grade 6 economist role.

However, she was not given an interview because she fell below the minimum requirement in the “application of economics” competency test.

The employer later announced that the role had been given to a male employee, who had less experience and qualifications than the female employee.

She raised a grievance with her employer and an investigation was launched. It found that several female employees “detailed bad practices that led to them feeling undervalued and demoralised”. Despite this, there was no discrimination proven.

The employee unsuccessfully appealed the decision, and later resigned.

She brought the case to the Employment Tribunal, which found in her favour.

The tribunal heard that gender balance among economists working for the employer was “out of kilter”. Court documents showed women made up 37% of the total grade 7 employees, compared to just 20% of the higher grade 6.The Judge said their “approach to gender balance on the selection panels… pointed towards a general culture where discrimination and, in particular, sex discrimination, is not properly understood by those who are required to ensure its elimination”.

The employer was ordered to pay £19,000 to the employee in compensation for injury to feelings.

 

New National Minimum and Living Wage rates come into effect

The new National Minimum and Living Wage rates came into effect on 1 April. The new rates are:

  • £8.21 per hour for ages 25 and over
  • £7.70 per hour for ages 21 to 24
  • £6.15 per hour for ages 18 to 20
  • £4.35 per hour for school leaving age to 17
  • £3.90 per hour for apprentices.

The new rates apply to the next pay reference period that begins on or after the date a rate increase begins or when an employee reaches a new age bracket.

For example, this means that an employee paid on the 20th of each month will start to receive the new rate of minimum wage from 21 April onwards.

If a worker receives above NMW there is no legal obligation on an employer to increase their pay when the NMW rate increases.

There are several people who are not entitled to the NMW or NLW. These include:

  • self-employed people
  • volunteers or voluntary workers
  • company directors
  • members of the armed forces
  • family members, or people who live in the family home of the employer who undertake household tasks
  • work experience students, depending on the length of their placement.

All other workers including pieceworkers, home workers, agency workers, commission workers, part-time workers and casual workers must receive at least the NMW or NLW.

The apprenticeship rate only applies to apprentices aged under 19, and those who are 19 or over who are in the first year of their apprenticeship.

Apprentices aged 19 or over in their second year of apprenticeship must receive the national minimum wage or national living wage rate to which their age entitles them.

 

Court clarifies law on compensatory rest periods for workers

An employer must provide workers with a “compensatory” rest period when it’s not possible to offer the standard breaks as required by law.

However, the compensatory period doesn’t have be identical to the standard break; it just has to be of equal value in contributing to the worker’s well-being.

That was the decision of the Court of Appeal in a case involving Network Rail and one of its employees who worked alone as a signalman on eight-hour shifts. He had no rostered breaks but was expected to take breaks during quiet periods.

None of the individual breaks lasted the minimum 20 minutes required under the Working Time Directive, but in aggregate they lasted substantially more than 20 minutes.

He brought a claim to the Employment Tribunal on the basis that he was entitled to at least 20 minutes’ uninterrupted compensatory rest.

The case went all the way to the Court of Appeal, which ruled in favour of Network Rail. It held that compensatory rest did not have to be identical to the standard break entitlement as long as it provided equivalent value.

There was no reason why a single uninterrupted break of 20 minutes would always be better than, for example, two uninterrupted breaks of 15 minutes, one-third and two-thirds through a shift.